Krishna Chandra Sinha vs Emperor

Rowland, J.—The petitioner has been convicted u/s 81(4), Defence of India Rule''s, for an offence alleged to have been committed on 2nd April 1942 by selling two annas worth of rice to Balgobind Mistri at 5 3/4 seers to the rupee, whereas the controlled price was 7 1/16 seers per rupee and also selling one anna worth of rahar dal at 6 1/2 seers to the rupee whereas the controlled price was 8 seers to the rupee. He was sentenced by the Magistrate to a fine of Rs. 500 and on appeal the conviction was affirmed without entering into the merits on the ground that the appellant had pleaded guilty. Therefore the learned Sessions Judge said an appeal lies only on the question of sentence. The learned Judge was referring to Section 412, Criminal P.C., which bars an appeal except us to the extent or legality of the sentence when an accused person has pleaded guilty and has been convicted by a Magistrate of the first class on such plea.

In revision it is said that the petitioner pleaded not guilty and it is further contended that his confession of guilt, if at all it was a confession, cannot deprive the petitioner of the right of getting a wrong order set aside. Strictly speaking, in order to make Section 412, Criminal P.C., applicable the accused must have been convicted on his plea of guilty in exercise of the discretion of the Magistrate lander Section 255(2) of the Code. The judgment of the trial Court recites the evidence for the prosecution and the facts thereby proved as well as the substance of the accused''s examination and his plea; but it does not make it quite clear whether the conviction is based on the plea or on the evidence or both.

I shall, however, assume that the conviction was a conviction on the plea within the meaning of Section 255 and proceed to examine the results which follow from that position. So far as the Court of Session is concerned to which appeals from convictions by a First Class Magistrate ordinarily lie, the learned Sessions Judge was justified in saying that an appeal to him lies only on the question of sentence. Now it is objected on behalf of the j Crown in the present case that similarly an application in revision to this Court is entertainable only on the same grounds on which an appeal was entertainable by the Court of Session. This argument rests on a reading of Section 439 of the Code in connection with Section 428. Section 439 empowers the High Court in its discretion to exercise any of the powers conferred on a Court of appeal by Section 428 and the succeeding sections. Hence it is suggested that where in a particular case the powers of an appellate Court are restricted by Section 412 the powers of the High Court in revision are similarly restricted. The argument, it seems to me, loses sight of the provisions of Sections 413 and 414 and the consequences of those provisions.

In those two Sections it is enacted that in certain cases there shall be no appeal but such provisions have never been considered to forbid the, High Court in revision from exercising just as wide powers as if there had been an appeal and the High Court had been the appellate Court. In my opinion therefore the powers of this Court in dealing with the present application are as ample as if an appeal on the merits had been entertainable by the Sessions Judge and had been dismissed.

Coming now to the merits, the plea of the accused was obviously given under the impression that if the fact of his selling the rice and the rahar dal at the rates alleged was proved this would amount to a breach of the rule cited in the charge and therefore an offence punishable under Sub-section (4). It has since transpired on an examination of the provisions of the Section that until an amendment was made by which infringement of an order under the rule was made punish, able with the same penalty as breach of the rule itself, it was not an offence to commit a breach of an order made under the rule, so that acts of this nature dated before 11th July 1942 have been held not to be punishable. That being so on a proper understanding of the law there should not have been a conviction of the petitioner. In the result I shall allow the application, set aside the conviction and direct the fine if paid to be refunded.